United Kingdom Employment Appeal Tribunal

Appeal No. UKEATS/0002/17/JW

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

                                                                                                                At the Tribunal

                                                                                                                On 17^th May 2017

Before

THE HONOURABLE LADY WISE

(SITTING ALONE)

MRS D SAVAGE                                                                                          APPELLANT

JC 1991 LLP T/A JOHN CAMPBELL, MESSENGERS AT ARMS & SHERIFF OFFICERS

 & OTHERS                                                                                              RESPONDENTS

Transcript of Proceedings

JUDGMENT

                                              APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE

ACAS Certificates

The claimant raised proceedings against three respondents because there was a lack of clarity as to the identity of her employer. The first and second respondents were the same entity, an LLP. The claimant  had been employed from 1998, her contract of employment naming her employer as the individual who was and is the principal actor in the business. However, the identity of her employer appeared to have changed in that by the date of her dismissal in 2016 she was being paid by an LLP. Her position was that she had not been advised or consulted in relation to any change of employer.

She secured two ACAS Certificates naming two prospective employers, namely the individual  either with a trading name or possible trading as an unlimited liability partnership and secondly the LLP. The Employment Tribunal had erred in treating the two certificates as if they applied to the first and second respondents, who were the same entity, and in not allowing the claim against the individual to proceed.

Appeal allowed on the basis that the claimant now conceded that the second respondent would be deleted from the proceedings so that the claim would proceed against the individual and the LLP pending final clarification of the identity of the employer.

THE HONOURABLE LADY WISE

1.         The claimant Donna Savage was employed by John Campbell, a Sheriff Officer and Messenger At Arms, from 30^th March 1998.  She was dismissed from her employment in about May 2016.  By that date on the face of the paperwork she appears to have been employed by a limited liability partnership.  Mrs Savage has raised a claim in the Employment Tribunal in connection with her dismissal, which she alleges was unfair.  She has sought to name three respondents in those proceedings namely (1) JC 1991 LLP trading as John Campbell Messengers At Arms and Sheriff Officers, (2) JC 1991 LLP and (3) John Campbell.  All three named respondents are given the same business address.

2.         On 25^th August 2016 the Employment Tribunal rejected the claim against the third respondent John Campbell on the basis that there was no Early Conciliation Certificate from ACAS in relation to that respondent.  The claimant has appealed that decision arguing that a separate Early Conciliation Certificate is not required from the third respondent.  Two ACAS Certificates have been produced and one of them has named as respondent “John Campbell Messengers At Arms and Sheriff Officers”.  The claimant argues that this Certificate is apt to cover John Campbell as an individual.

3.         It seems to me that the real issue in this appeal is the claimant’s understandable anxiety to include as  respondents all those who might be regarded as her employer.  For the purpose of the appeal hearing those representing the LLP (registered number SO304121) have lodged documentation detailing the history of the identity of the claimant’s employer.  In essence although her original contract of employment which is lodged states and names her employer as “John Campbell” it appears at least from the documents lodged by the respondent that the claimant might have been employed by a John and Martha Campbell until at least 2002.  A copy notice from the Inland Revenue dated 16^th February 2003 is addressed to “John and Martha Campbell” as being her employer.  Between about 2003 and 31^st March 2015 the claimant’s employer appears to have been “John Campbell Sheriff Officers LLP”.  At the time of her dismissal she was employed by JC 1991 LLP which appears also to be known as Diligentia Mason LLP.

4.         The papers contain a letter from John Campbell, Messengers At Arms and Sheriff Officers to the claimant dated 1^st December 2014 on which it is stated at the foot that “John Campbell is a trading name of John Campbell Sheriff Officers LLP registered office 1-3 Springburn Place, East Kilbride, G74 5NU registered number SO304121”.  The letter from the firm’s chartered accountants Graham & Co and the signed witness statement of the business’s bookkeeper, a Margaret Mason, appear to support an inference being drawn that JC 1991 LLP is a new entity distinct from the one that employed the claimant between 10^th December 2012 and 30^th March 2015.  The claimant’s payslip and P45 have “Diligentia Mason LLP” as the employer with a different address to both the registered office of John Campbell Sheriff Officers LLP and the business address at which the claimant worked.  However the registered number of the LLP has apparently not changed and it may well be that there has been no change in the entity at all, merely a change of name.

5.         I am told that the claimant has no information about the transfer of employment from old to new entities during the period 1998 to 2016.  She contends that her employer is John Campbell, an individual who trades as John Campbell Messengers At Arms and Sheriff Officers and that he had been her employer since 1998.  She contends that she was never told about or consulted on any transfer of employment to a new business entity.   It does seem tolerably clear from the documents produced by the respondent for this appeal that the claimant was at the material time of her dismissal employed by a limited liability partnership although that does not accord with the instructions given by her  to her solicitor Mr Carlin.  Against that background the claimant obtained and lodged with the Employment Tribunal two ACAS Conciliation Certificates as follows:-

(1)            R168969/16/54 naming “John Campbell Messengers At Arms and Sheriff Officers” as prospective respondent; and

(2)            R169232/16/15 naming JC 1991 LLP as prospective respondent.

 The Employment Tribunal rejected the claim against the third respondent as not coinciding with either of those Certificates.  It is noteworthy that in a letter of 8^th November 2016 from the Tribunal to the claimant’s agent the Tribunal states that the Employment Judge who considered the papers regarded the two ACAS Certificates as “bearing to be for the first two respondents”.

6.         The respondent’s agents in a written response to this appeal contend that the first Certificate is directed against a partnership or trading entity rather than an individual.  In my view such a contention ignores that sole traders often describe themselves by name and then by description of their trade or profession, for example “John Smith, Plumbers and Heating Engineers”,  such that without further enquiry one does not know whether the business is owned by a sole trader or is an unlimited liability partnership.  Further, the letters of dismissal dated 3^rd and 29^th March and 23^rd May 2016 (the first on the basis of redundancy and sent directly by the employer and the third for alleged gross misconduct sent by a firm of solicitors for the employer) both named that employer as either “John Campbell Messengers At Arms and Sheriff Officers” or “John Campbell Sheriff Officers”.  Accordingly it seems that the claimant’s employer was not corresponding with her in a way that identified clearly the legal entity that   employed her and so may have confused the issue of against whom proceedings should be raised, particularly in light of the claimant’s own understanding that she continued to be employed by Mr John Campbell, an individual who is on any view the principal actor in the business.

7.         It appears that those instructed by the claimant sought to address the uncertainty by naming three respondents.  Unfortunately the descriptions of the respondents in the ACAS Certificates do not match precisely the respondents named in the ET1.  In my view the claimant was entitled to raise proceedings naming the two respondents in the ACAS Certificates both as having been identified as prospective respondents.  The error seems to be in the separation of the first and second respondents in the ET1 as the LLP is the entity regardless of whether the trading name is also used.  The claimant was entitled to cite as respondents both “John Campbell Messengers At Arms and Sheriff Officers” and “JC 1991 LLP” the limited liability partnership at least pending final clarification of the identity of her employer.

8.         So the ACAS Conciliation Certificate number R168969/16/54 is apt for proceedings against John Campbell trading as Messengers At Arms and Sheriff Officers which could either relate to John Campbell as a sole trader or a partnership with unlimited liability.  Neither the first nor the third respondent’s descriptions in the ET1 match completely that ACAS Certificate.  The issue then is whether the Employment Tribunal erred in treating the Certificate as relating to the first and second respondents as opposed to the first and third respondents.

9.         In my view the first ACAS form submitted for the claimant was clearly intended to identify John Campbell as an individual with a trading name as the respondent.  That is clear from the subsequent form lodged on behalf of the claimant when applying for the second Certificate which narrates:

“We previously submitted an application against John Campbell.  We are now made aware that this is a limited partnership and we enclose fresh application.  Could you please deal with BOTH together”. 

It is also noteworthy that in the respondent’s initial answer to this appeal (EAT form 3) the respondent describes himself as “John Campbell”.   Further, the Schedule to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 paragraph 2 requires only that the early conciliation form must contain the prospective respondent’s name and address.  That was done separately on the two forms submitted to ACAS.

10.       In these circumstances I am satisfied that the Employment Tribunal did err on the basis that the ACAS Certificates do not bear to name the LLP as first and second respondents.  They bear to relate to first an individual with a trading name and secondly an LLP as the two prospective respondents.  Of course had the claimant raised proceedings only against the LLP and John Campbell (with or without the trading name) the difficulty would not have arisen.  Mr Carlin accepted very fairly at the hearing before me that the presence of the named second respondent in the proceedings was meaningless given that the entity is that already included as the first respondent.  I should record also and in fairness to the respondents that the position taken by them was and is that respondent 1 and respondent 2 are one and the same entity.  As that is now accepted on behalf of the claimant steps ought to be taken to delete the second respondent from the proceedings and I am going to allow this appeal only on the basis that Mr Carlin now accepts  that should be done.

11.       The proceedings can then progress against the LLP and John Campbell (trading as John Campbell Messengers At Arms and Sheriff Officers) at least pending resolution beyond doubt of the issue raised by the claimant about whether her employment transferred to the LLP.  The two ACAS Certificates lodged relate to the only two respondents identified by the claimant as those against whom she wishes to claim.  Accordingly I will allow the appeal and remit the matter to the Tribunal to progress the claim.